Personhood and the Law

Joanna Galbraith

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Declaration of Independence, 1776.

More than 230 years after the Declaration of Independence, a specific “created” class of persons in America is denied the most essential of the guarantees contained in this pronouncement.

Personhood under the law is a malleable creature, chiseled by the vicissitudes of social mores and the nation’s moral landscape. By the courts’ attachment of this nomenclature, constitutional rights have been granted to corporations and business entities. Also, by its detachment, constitutional rights such as life and liberty have been denied to unborn children. The youngest members of our society have a fragile existence, jeopardized by the inconsistent application of personhood under the various divisions of law, specifically, criminal, civil, probate and constitutional.

In the criminal sphere, 36 states prosecute the killing of a preborn child as homicide, although application varies based on the child’s stage of development. Alternatively, the “born-alive rule” is applied in 12 states, which requires a live birth and subsequent death due to injuries caused before birth in order to prosecute for homicide.

Thousands of years ago when God delivered the criminal law to the nation of Israel He outlined the appropriate punishment for assault on a pregnant woman resulting in the death of her unborn child. “If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no lasting harm follows, he shall surely be punished accordingly as the woman’s husband imposes on him; and he shall pay as the judges determine. But if any lasting harm follows, then you shall give life for life…” Exodus 21:22, 23. This principle has imprinted our criminal laws today.

Twenty one states prosecute assailants for attacks on pregnant women which injure their unborn child. In 11 states prosecutions and enhancements of penalty are authorized in cases where a woman is assaulted and as a result thereof suffers a miscarriage, stillbirth, or “damage to pregnancy,” albeit six of these fail to recognize the unborn child as a victim of the assault. Ironically excluded from prosecution under any of the foregoing are mothers of the unborn child and medical personnel in the context of legal induced abortion. However, in 6 states mothers who engage in substance abuse during pregnancy may be prosecuted for child abuse. Ten other states provide for a civil action under child welfare statutes.

Civilly, thirty eight states permit a legal action for wrongful death of a preborn child dependent on the preborn child’s state of development. In contrast, 12 states require a live birth and subsequent death in order to bring suit.  For more than 120 years, probate law has recognized the unborn child’s rights of inheritance followed by a live birth, a standard applied nationwide. Cowles v. Cowles, 56 Conn. 240, 13 A. 414 (1887). However, constitutional law, as interpreted by the Supreme Court, refuses to acknowledge the personhood of the preborn.

Justice Blackmun, who authored the majority opinion in Roe v. Wade, concluded “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

A preborn human being was therefore not a “person” and had no right to life. Justice Blackmun suggested that if the unborn were constitutional persons, the case for abortion would collapse. Roe v. Wade, 65 410 U.S. 113 (1973).

“So God created man in His own image; in the image of God He created him; male and female he created them.” Genesis 1:27. While all persons may have been created equal, under abortion jurisprudence millions of Americans suffer the worst stigma of inequality by denial of the right to life.

[Joanna Galbraith is a volunteer staff attorney for Life Legal Defense Foundation. She wrote the preceding at the invitation of the Human Life Alliance for one of their publications. The work of HLA is briefly described in the article on page 12.]